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Today's Debate Over Online Porn Started Decades Ago

The online porn laws proposed everywhere from Rhode Island to the UK today echo the same concerns as legislation from the 1990s.

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In 1995, a bipartisan pair of senators wrote a bill to address growing concerns over minors accessing pornography on the internet. President Bill Clinton would eventually sign the Communications Decency Act in 1996, criminalizing the online transmission of “obscene or indecent” materials to anyone known to be under the age of 18. The Supreme Court struck down the law's anti-indecency provisions on First Amendment grounds the following year, though many influential parts of the bill remained. But the legislation’s failure in the courts did nothing to dissuade lawmakers from continuing to fight porn online.

Over the ensuing decades, regulators have consistently attempted to stop people—adolescents in particular—from accessing sexually explicit material on the internet. A number of states, the House, the Senate, and UK lawmakers are all currently considering, set to vote on, or implementing legislation designed to curb access to sexually explicit websites or speech. Efforts in individual states and the UK have bubbled up as recently as this week.

The specifics of the bills vary widely, but all are vague and cumbersome to implement, fail to incorporate adult industry stakeholders, and don’t account for inevitable side effects. Lawmakers, though, eternally pursue the public relations boost that comes with fighting against the spread of explicit material online—frequently under the guise of ending sex trafficking and child pornography.

Twice the Price of Netflix

Just this month, Rhode Island joined several other states, including South Carolina and Texas, in considering a variation of the Human Trafficking and Child Exploitation Prevention Act, which would mandate that manufacturers pre-install content filters that block porn sites on every internet-connected device by default.

The bill is largely the work of a reportedly disbarred attorney named Chris Sevier, a man who once tried to legally marry his own computer, has been charged with stalking and harassing two different people, and was convicted for assaulting his former father-in-law, according to the Daily Beast.

'It is difficult, if not impossible, to put in place a regulation that would limit minors’ access that wouldn’t also unconstitutionally burden adults’ access to that material.'

Emma Llansó, Center for Democracy & Technology

Details vary somewhat by state, but it typically proposes that customers would have to pay a one-time fee to remove the porn filters, which most versions of the bill peg at around $20 per device. The legislation also mandates that manufacturers of internet-connected devices maintain around-the-clock call centers in case porn or other explicit material slips through the blocker. The bill’s proponents argue that the funds collected from would-be porn watchers could be used to help fight human trafficking, revenge porn, and child pornography.

Opponents of the proposed laws, including groups like the Electronic Frontier Foundation, the Center for Democracy & Technology, the ACLU, and the Free Speech Coalition, a lobbying groups that represents the adult industry, believe the law is not only misguided, but potentially unconstitutional.

The bill’s authors fail to clearly outline what constitutes adult content, leaving room for things like LGBT material and sexual education to be caught in the fray, argues Michael Stabile, a representative from the Free Speech Coalition. “It’s about sexuality, there’s an idea that if we could sort of turn off this conversation entirely—about what people understand about sex and gender—you could make America great again in a really brief way,” says Stabile.

There’s also the obvious privacy concern. If citizens have to request their porn filters be turned off, either the government or internet-connected device manufacturers will end up with a sensitive database of people who have explicitly said that they want to watch porn, a concern that the Electronic Frontier Foundation has voiced.

If any of the pending porn-tax bills did become law, they would also likely face immediate and expensive constitutional challenges, re-invoking some of the same issues that were debated in Reno v. ACLU, the Supreme Court case that struck down portions of the Communications Decency act in 1997. “It is difficult, if not impossible, to put in place a regulation that would limit minors’ access that wouldn’t also unconstitutionally burden adults’ access to that material,” says Emma Llansó, the director of the Free Expression Project at the Center for Democracy & Technology.

Across the pond in the United Kingdom, regulators have already passed a new measure that will require anyone who wants to access online porn register one time with an age verification database. The rules were set to be introduced next month, but are now delayed until later this year, according to the country’s Department for Digital, Culture, Media and Sport. Once the restricitons do go into effect, noncompliant porn sites risk being blocked by internet-service providers, and face up to about $350,000 in fines.

The UK government is leaving it up to the adult industry to craft its own age verification system. Many adult industry stakeholders oppose the new regulations, especially over concern that MindGeek—a porn behemoth that owns or is affiliated with many of the world's most popular adult content sites—would monopolize the age-verification market. The company has already developed its own verification software, AgeID, which requires users to confirm their age with some form of ID before accessing adult sites. (AgeID has already been in use in Germany since 2015.) The worry, as reported by The Verge, is that MindGeek will dominate the market, and charge smaller adult content sites exorbitant fees to use AgeID.

MindGeek did not immediately return a request for comment, but AgeID says it's also against the regulations, despite having built the software to accommodate them. “We have always felt that parents are in the best position to monitor their children’s online activity, and are concerned that the new law discourages this," James Clark, the spokesperson for AgeID said in a statement. "The mandated, proportionate approach to regulation (starting with the 100 websites with the most traffic and work down) will not achieve the child protection aims of the law, as un-monitored children will still find non-compliant adult content via a simple search query. That said, as a responsible company, we want to ensure we are complying with the regulations and hope that the regulator is sufficiently resourced to carry out its function successfully."

MindGeek subsidiary Pornhub says that it also overall opposes the new regulations in the UK. "Here at Pornhub, we are not in favor of the UK regulations and firmly believe that parents are best placed to supervise their children’s online activity,” Corey Price, the vice president of Pornhub, said in a statement. “We have concerns that this law poses the danger of conveying a message that parents no longer need to do so. That said, we are committed to complying and adhering to the law."

Bigger Than Porn

The legislative debates around sex aren't limited to access-to-porn laws; sex work and human trafficking have become a recent focus for Congress. Late last month, the House of Representatives passed the Fight Online Sex Trafficking Act, a bill designed to curb sex trafficking by placing new criminal and civil liabilities on social media sites that host speech about sex work. The Senate is expected to vote on a version of FOSTA this week. Sex workers and civil liberties advocates, though, say the proposed laws fail to draw a distinction between consensual employment and human trafficking.

'We are not in favor of the UK regulations and firmly believe that parents are best placed to supervise their children’s online activity.'

Corey Price, Pornhub

Meanwhile, lawmakers discover a renewed interest in limiting adolescents’ access to explicit material every few years, in the name of fighting “the public health crisis” of porn, or ending human trafficking. Meanwhile the actual effects of porn on young people are still being explored.

After the Communications Decency Act, for example, Congress tried to pass the Child Online Protection Act in 1998, which sought to keep children from seeing material deemed to be “harmful” by forcing website operators to use using age-verification systems or credit-card registration. It, too, was deemed unconstitutional by the Supreme Court. Finally, the Clinton administration found success with the Children’s Internet Protection Act (yes, all these bills have similar names) which prevents kids from accessing objectionable content online by cutting off federal funds for libraries that fail to install filtering software on their computers.

So why do new laws aimed at tackling sex online seem to emerge from the ether every few years? For one, many representatives may be unfamiliar with previous failed legislation. They “really haven’t looked at the whole history,” says Llansó, and “see what they perceive to be a problem and want to go for a top-down solution that will really dissolve it.”

It’s also tricky politically for an elected official to vote against legislation that purports to protect minors from harmful material. “The politics of where anybody stands in support or against a bill can come to just some really basic electoral politics considerations,” says Llansó. That means for now, legislation aimed at curbing teenagers access to porn will likely continue to find support. Meanwhile, 93 percent of US males and 62 percent of females say they viewed porn when they were adolescents, according to a 2008 study. Only 24 states currently mandate sex education.